Elthon, Don v. The University of Houston--Appeal from 281st District Court of Harris County

Affirmed and Opinion filed June 6, 2002

Affirmedand Opinion filed June 6, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00457-CV

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DON ELTHON, Appellant

V.

THE UNIVERSITY OF HOUSTON, Appellee

On Appeal from the 281st District Court

Harris  County, Texas

Trial Court Cause No. 96-36787

O P I N I O N

This is the second appeal in this Whistleblower Act case. While employed as a chemistry professor at the University of Houston, Dr. Don Elthon alleged that he reported improper or illegal activities by other faculty members, and suffered retaliatory treatment as a result. In an earlier interlocutory appeal, we affirmed the trial court=s denial of the University=s plea to the jurisdiction, finding he had pleaded compliance with the grievance requirements of the statute. See Tex. Gov=t Code Ann. '' 554.006(a); University of Houston v. Elthon, 9 S.W.3d 351 (Tex. App.CHouston [14th Dist.] 1999, pet. dism=d w.o.j.). The case then proceeded to trial, and the jury found all issues in favor of the University of Houston. On appeal, Elthon blames this result on improper evidence and jury instructions.

The Jury Instruction: Causation

In his first issue, Elthon asserts the trial court=s instruction required him to prove his whistleblowing was the Asole cause@of the University=s retaliatory actions. The court=s jury question began:

Did the University of Houston retaliate against Dr. Don Elthon because of his good faith report of a violation of law, if any, to an appropriate law enforcement agency?

An employer Aretaliates@against an employee when the employer:

(1) takes an adverse employment action against an employee that effects [sic] an employee=s compensation, promotion, demotion, work assignment or performance evaluation; and

(2) the adverse employment action would not have occurred when it did had the report not been made Bthat is, but for the report, the adverse employment action would not have occurred.

Elthon requested the trial court to submit an instruction to the jury that he did not have to prove that his report was the sole cause of the alleged retaliation. The trial court refused.

In Texas Department of Human Services v. Hinds, 904 S.W.2d 629, 637 (Tex. 1995), the Texas Supreme Court construed the somewhat ambiguous Abecause@ standard in the whistleblower statute to require the following jury instruction:

An employer does not discriminate against an employee for reporting a violation of law, in good faith, to an appropriate law enforcement authority, unless the employer=s action would not have occurred when it did had the report not been made.

As can be seen, the Court did not require the Anot sole cause@ instruction requested by Elthon. The jury charge given here substantially complies with the instruction required by Hinds. The trial court=s addition of the Abut for@ clause did not alter the standard; it merely incorporated the general definition of cause-in-fact. See Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d 778, 784 (Tex. 2001) (noting test for cause in fact is whether (1) it was a substantial factor (2) without which harm would not have occurred); see also Texas Natural Resource Conservation Com'n v. McDill, 914 S.W.2d 718, 724 (Tex. App.CAustin 1996, no pet.) (construing Hinds to require Abut for@instruction).[1]

Elthon contends that the Hinds standard was overruled in Quantum Chemical Corporation v. Toennies, 47 S.W.3d 473 (Tex. 2001). But the statute there only required proof that age discrimination Awas a motivating factor@ of an employment practice. See Tex. Lab. Code Ann. '21.125(a). This is simply a different statutory standard. The first point of error is overruled.

The Jury Instruction: Law Enforcement

In his second point, Elthon asserts the trial court should have submitted his proposed jury instruction defining Alaw enforcement authority@ in the same jury question. The court=s instructions stated:

A Alaw enforcement authority@ means a federal, state, or local government entity that the employee believes in good faith is authorized to (1) regulate under or enforce the law alleged to be violated in the report; or (2) investigate or prosecute a violation of the criminal law.

Elthon submitted the following alternative:

A Alaw enforcement authority@ means a federal, state, or local government entity that the employee believes in good faith is authorized to: (1) regulate under or enforce the law alleged to be violated in the report; (2) investigate or prosecute a violation of the criminal law; (3) inquire into the lawfulness of the conduct in question and cause its cessation if the conduct appears to be a violation of law; or (4) take remedial action with respect to the alleged violation of law.

The trial court=s definition was based on a 1995 amendment to the Whistleblower Act. Elthon=s definition summarized pre-1995 caselaw,[2] as the term Alaw enforcement authority@ was not defined before the 1995 amendment.

But the Legislature provided that the 1995 amendment was to apply to Aadverse personnel action taken against a public employee on or after the effective date of this Act.@ Act of May 25, 1995, 74th Leg., R.S., ch. 721, ' 11, 1995 Tex. Gen. Laws 3814, 3815. Although Elthon made his reports before the effective date, he concedes the University=s actions took place afterwards. Thus, the amendment applies, and the trial court=s definition was correct. See Texas Dept. of Transportation v. Needham, 45 Tex. Sup. Ct. J. 631, 2002 WL 924463 *5 (May 9, 2002) (holding as reversible error use of pre-amendment case law to expand statutory definition of Aappropriate law enforcement authority@). The second point of error is overruled.

The Prior Academic Dispute

In his third point, Elthon alleges the trial court erred in allowing Dr. John Casey to testify about several prior disputes between them. Elthon argues that their differences Bwhich culminated in Elthon filing charges against Dr. Casey with the University B were introduced to suggest a habit of using reports of misconduct as a weapon rather than a good faith effort to stop illegal conduct. See Tex. R. Evid. 404(b).

The University argues the evidence was necessary to rebut Elthon=s assertion that he was a Arising star@ destined to be a dean, provost, and even president of a major university. We agree that past conflicts with those who could object to his further advancement were relevant. See Hinds, 904 S.W.2d 629, 632 (discussing employer=s arguments that employee was fired for reasons unrelated to whistleblower report, such as inability to get along with supervisors). Elthon did not object to the part of the evidence that he says was particularly prejudicial Bthe filing of charges. By failing to seek a limiting instruction, he has waived error. See Tex. R. Evid. 105.

Moreover, Elthon testified to these same matters without objection during his cross-examination earlier in the trial. Therefore, Dr. Casey=s testimony was merely cumulative, and thus its admission (even if erroneous) was harmless. See McCraw v. Maris, 828 S.W.2d 756, 762 (Tex. 1992). We overrule the third point.

The Letters

In his fourth point, Elthon asserts the trial court should not have admitted three letters suggesting his report of an inflated insurance claim was factually incorrect. Elthon reported another University employee, Dr. Karl Kadish, for allegedly filing inflated insurance claims for laboratory chemicals and equipment lost during a flood. According to Kadish, he based his insurance claims on the letters, which gave estimates of the cost to replace the lost chemicals.

At Elthon=s request, the trial court admitted the letters with a limiting instruction that they were Aadmitted not for the truth of matter asserted therein, but rather that the information was provided to the witness and the witness formed whatever belief the witness may have formed@ regarding the information. The limiting instruction negated Elthon=s hearsay objection. See First Heights Bank, FSB v. Gutierrez, 852 S.W.2d 596, 615 (Tex. App.CCorpus Christi 1993, writ denied) (holding jury is generally presumed to follow limiting instruction). The fourth point of error is overruled.

The judgment of the trial court is affirmed.

/s/ Scott Brister

Chief Justice

Judgment rendered and Opinion filed June 6, 2002.

Panel consists of Chief Justice Brister and Justices Anderson and Frost.

Do Not Publish C Tex. R. App. P. 47.3(b).

[1] Elthon argues in hindsight that the jury was Aobviously confused@ by the wording of this jury question. Nothing in the record supports this argument, nor did Elthon raise any objection at trial suggesting the question would be Aconfusing to the jury.@

[2] See, e.g., City of Dallas v. Moreau, 697 S.W.2d 472, 474 (Tex. App.CDallas 1985, no writ); Travis County v. Colunga, 753 S.W.2d 716, 719-20 (Tex. App.CAustin 1988, writ denied); Castenada v. Texas Department of Agriculture, 831 S.W.2d 501, 503 (Tex. App.CCorpus Christi 1992, writ denied).